1.3 Errors in the applicants founding affidavit (treated as correct)

ERRORS IN THE APPLICANT’S FOUNDING AFFIDAVIT (TREATED AS CORRECT)

Introduction
Medical errors in affidavits not considered by judge
Failure to prove imminent death
Failure to prove cannot treat pain (as alternative to euthanasia)
Applicants false fear of being in a ‘disassociative state’
Applicant not informed of his medical rights and treatment alternatives
Judge adopt above errors in his judgment
Inaccuracies relating to the South African Law Reform Commission (SALRC) Report
Context: The authority of the SALRC
Quotations from first draft and not final report
Claim SALRC did not go to parliament
False claim the SALRC report recommended legalisation of euthanasia
Errors assumed by judge in judgment

Introduction
• The applicants founding affidavit includes multiple factual errors and failure to prove argument.
• The time frames for the trial did not allow opportunity for correcting or debating these errors.

Medical errors in affidavits not considered by judge

Failure to prove imminent death
• The medical reports submitted did not provide evidence that the applicant was in danger of dying within the claimed time frame of two to four weeks.
• The claimed expected death was due to cancer resulting in renal failure. Nevertheless, both the Health Professions Council doctor and the Christian Medical Fellowship doctor reviewing this affidavit argued the renal function of the applicant was quite good and unlikely to degenerate in the time frame.
• As it turned out, the applicant did die during the trial. Nevertheless, the court should only act on proven evidence and no evidence was provided of such imminent death.
• With any prognosis, there will be a statistical range of results, with a few dying before, some at the expected time and many much later. The actual death, does not prove the correctness of the prognosis, as it may simply be on the early range of the statistical scatter.

Failure to prove cannot treat pain (as alternative to euthanasia)
• The applicant argued that his pain medication was contra-indicated in the case of renal failure (which he believed would be his likely cause of death).
• Nevertheless, this particular medication is contra-indicated in renal patients because of resulting toxicity, not because it is ineffective in treating pain. In the case of palliative care patients, toxicity is irrelevant since the patient will die anyway soon.
• Even in the instance that he did not wish to take this medication, there are other effective medications for treating renal failure.
• Evidence for this was presented to the court, but not properly considered.

Applicants false fear of being in a ‘disassociative state’
The applicant in his affidavit expressed fear that the pain medication would put him in a ‘disassociative state’ and that he instead wanted to die aware of his surroundings. This indicates the effect of the medication had not yet been explained to him by the time he wrote the affidavit, but by the time the trial actually happened he had started taking the medication and so would have been aware of this. In fact, the pain medication puts a person in such a state only temporarily for a few days after which the body adjusts to the medication and sharp awareness is restored. The fear of the applicant is thus unfounded and the drastic solution of suicide/euthanasia not needed to achieve it.

Applicant not informed of his medical rights and treatment alternatives
• The applicant stated he wished to die at home with his family and feared dying in hospital attached to a machine.
• Nevertheless, under existing law, he had every right to die at home with his family and to refuse extra-ordinary medical treatment. The palliative care medication he needed could also be easily administered at home.
• This reason motivating the application is thus invalid. The applicant was misinformed of his medical choices.
Judge adopt above errors in his judgment
Despite the above inaccuracies being corrected by medical affidavits by two of the parties to the case, the judge in his judgment accepts the applicants claims as valid. He thus indicates a failure to apply his mind to the case.

Inaccuracies relating to the South African Law Reform Commission (SALRC) Report
The applicants affidavit makes numerous references to the South African Law Reform Commission Report on euthanasia.

Context: The authority of the SALRC
The South African Law Reform Commission is a para-statal body that researches maybe twenty to fifty speculative suggestions for legal changes each year, allocating two or three researchers the task of writing a report on each topic. Their final reports are reviewed by a senior official before being released to the public and to parliament for further consideration. It is purely a research body and has no authority or democratic accountability. The opinions are simply those of the allocated researchers. Sometimes parliament finds there work useful and they find their way with modifications into law. In many cases such as this one they are not accepted. A law is never voted on by Parliament exactly as proposed by SALRC.
Quotations from first draft and not final report
• The applicant quotes extensively from a suggested Bill legalising euthanasia from the South African Law Reform Commission Report, and cites his compliance with these requirements as grounds for his application to the court.
• Nevertheless, they incorrectly from the first draft of the report, as if it was the final presented to parliament and fail to distinguish between the draft and final. Such indicates sloppy legal homework.

Claim SALRC did not go to parliament
• The applicant claims the SALRC report did not go to parliament. Did go to parliament and parliament rejected it. i.e. Parliament was not interested in legalising euthanasia. It was discussed on at least nine separate occasions: First in the Justice Committee, then the Health Committee, then the National Council of Provinces, then the National Assembly in various ad-hoc motions. It did not find sufficient support to be tabled as a formal bill and was reported as abandoned on 3 August 2004. Nevertheless, the issue continued to be raised in parliament and thus far has not been formally supported by any political party or defended by a single parliamentarian in their personal capacity. It has been rejected by the Ministries of Health and Justice.
False claim the SALRC report recommended legalisation of euthanasia
• The applicants affidavit claimed the SALRC report recommended the legalisation of euthanasia. This is false. The report was mainly on the subject of clarifying or modifying in legislation the existing legal situation of patient and doctor rights for end of life decisions. The final report, its summary and its media summary stressed that it was neutral on the subject of legalising euthanasia. Three alternatives were proposed: First to keep the law as is (no euthanasia). Second to let a doctor decide. Third decision by panel or committee. The overwhelming majority of interested organisations: medical, religious and political favoured the first option.

Errors assumed by judge in judgment
• The same inaccurate claims of the SALRC report recommending euthanasia and not being sent to parliament were repeatedly fed to the media by Dignity SA, assumed true by the Judge and cited in the judgement.